USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13424 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PAUL BERKINS MOISE,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cr-00020-MMH-JRK-1 ____________________ USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 2 of 8
2 Opinion of the Court 21-13424
Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges. PER CURIAM: After a jury trial, Paul Moise was convicted of numerous counts of filing false tax returns. See 26 U.S.C. § 7206(1), (2). On appeal, he challenges his convictions on the basis that the prosecu- tor made an improper remark during rebuttal closing. We agree that the prosecutor made an improper remark. But as we explain below, we cannot say that the prosecutor’s single improper re- mark, in the context of the eight-day trial as a whole, caused Moise substantial prejudice. We therefore affirm Moise’s conviction. I. Moise owned and operated two tax-return-preparation com- panies. The evidence at trial showed that he included false infor- mation on his clients’ tax returns without their knowledge, such as deductions for expenses not actually incurred, to minimize their tax liability. He also filed individual tax returns falsely reporting his own income and expenses. Near the end of the eight-day trial, during closing argu- ments, Moise’s counsel pointed out that, before criminal charges were brought, the Department of Justice had told the investigating Internal Revenue Service agents to revise their calculations about Moise’s income and expenses using a more conservative method- ology. Defense counsel suggested that, because the agents’ initial USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 3 of 8
21-13424 Opinion of the Court 3
“work was so bad,” neither the revised calculations offered at trial nor the agents’ testimony could be trusted. In rebuttal, the prosecutor stated that the IRS’s initial calcu- lations have “nothing to do with this case.” To illustrate the point, the prosecutor continued, And I don’t want to seem flip, but some of you may have seen it. I think it’s a South Park episode. And there’s a character on there who is -- plays kind of a shyster attorney. And there’s a scene where he’s giv- ing his closing, and he puts up a picture of a Wookie from Star Wars. And he said: That’s a Wookie. What does that have to do with this case? Nothing. That doesn’t make any sense. This case doesn’t make any sense. Defense counsel objected and, at sidebar, argued that the prosecutor had implied he was a “shyster lawyer,” which the pros- ecutor disputed. The district court instructed the jury to disregard “those last couple of statements about the South Park episode,” and defense counsel did not request further relief. The prosecutor then continued with his argument that defense counsel was trying to distract the jury with irrelevant matters. The court also reminded the jury three times throughout the proceedings that statements made by attorneys are not evidence. Ultimately, the jury reached a guilty verdict on seventeen counts, but was unable to reach a ver- dict on the remaining six. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 4 of 8
4 Opinion of the Court 21-13424
On appeal, Moise argues that the prosecutor’s “shyster at- torney” comment denied him a fair trial because it poisoned the jury’s mind against him and discredited his attorney. He does not otherwise challenge his convictions or sentence. II. We ordinarily review a claim of prosecutorial misconduct de novo because it presents a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). Here, though, while Moise objected to the challenged comment, he did not seek further relief, such as a mistrial, after the court sustained the objection and instructed the jury to disregard the comment. See United States v. Mosquera, 886 F.3d 1032, 1046 (11th Cir. 2018) (where defense counsel “did not seek any further relief” after the court sustained a defense objection, “any claimed failure by the trial court is reviewable only for plain error”); see also United States v. Marquardt, 695 F.2d 1300, 1304–05 (11th Cir. 1983). Because Moise did not suggest that the curative instruction was insufficient to cure any prejudice stemming from the comment, his current de- mand for a new trial was not fairly presented to the district court, so plain-error review applies. 1
1 Moise seems to acknowledge as much in his reply brief. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 5 of 8
21-13424 Opinion of the Court 5
III. In any case, Moise is not entitled to relief under either stand- ard of review because the isolated comment did not prejudice his substantial rights. “Prosecutorial misconduct requires a new trial only if we find the remarks (1) were improper and (2) prejudiced the defend- ant[’s] substantive rights.” United States v. Frank, 599 F.3d 1221, 1237 (11th Cir. 2010) (quotation marks omitted). “A defendant’s substantial rights are prejudicially affected when a reasonable prob- ability arises that, but for the remarks, the outcome of the trial would have been different.” Eckhardt, 466 F.3d at 947. In evaluating whether a defendant’s substantial rights have been affected, we consider the misconduct “in the context of the entire trial, along with any curative instruction.” United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009); see United States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments stand- ing alone, for the statements or conduct must be viewed in con- text.”). “Reversal on the basis of prosecutorial misconduct requires that the misconduct be so pronounced and persistent that it perme- ates the entire atmosphere of the trial.” United States v. Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quotation marks omitted). Moreover, “[i]f the district court takes a curative measure, we will reverse only if the evidence is so prejudicial as to be incurable by that measure.” Lopez, 590 F.3d at 1256. That’s because “[w]e USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 6 of 8
6 Opinion of the Court 21-13424
presume that the jury followed the district court’s curative instruc- tions.” Id. The parties agree to that the prosecutor’s “shyster” remark could have been perceived as an attack on the credibility or integ- rity of Moise’s counsel. We also agree that the remark was im- proper on that basis. See Young, 570 U.S. at 9 (attorneys “must not be permitted to make unfounded and inflammatory attacks on the opposing advocate”); United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) (“[t]o discredit defense counsel in front of the jury is improper”), overruled on other grounds as stated in United States v. Watson,
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USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13424 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PAUL BERKINS MOISE,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cr-00020-MMH-JRK-1 ____________________ USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 2 of 8
2 Opinion of the Court 21-13424
Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges. PER CURIAM: After a jury trial, Paul Moise was convicted of numerous counts of filing false tax returns. See 26 U.S.C. § 7206(1), (2). On appeal, he challenges his convictions on the basis that the prosecu- tor made an improper remark during rebuttal closing. We agree that the prosecutor made an improper remark. But as we explain below, we cannot say that the prosecutor’s single improper re- mark, in the context of the eight-day trial as a whole, caused Moise substantial prejudice. We therefore affirm Moise’s conviction. I. Moise owned and operated two tax-return-preparation com- panies. The evidence at trial showed that he included false infor- mation on his clients’ tax returns without their knowledge, such as deductions for expenses not actually incurred, to minimize their tax liability. He also filed individual tax returns falsely reporting his own income and expenses. Near the end of the eight-day trial, during closing argu- ments, Moise’s counsel pointed out that, before criminal charges were brought, the Department of Justice had told the investigating Internal Revenue Service agents to revise their calculations about Moise’s income and expenses using a more conservative method- ology. Defense counsel suggested that, because the agents’ initial USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 3 of 8
21-13424 Opinion of the Court 3
“work was so bad,” neither the revised calculations offered at trial nor the agents’ testimony could be trusted. In rebuttal, the prosecutor stated that the IRS’s initial calcu- lations have “nothing to do with this case.” To illustrate the point, the prosecutor continued, And I don’t want to seem flip, but some of you may have seen it. I think it’s a South Park episode. And there’s a character on there who is -- plays kind of a shyster attorney. And there’s a scene where he’s giv- ing his closing, and he puts up a picture of a Wookie from Star Wars. And he said: That’s a Wookie. What does that have to do with this case? Nothing. That doesn’t make any sense. This case doesn’t make any sense. Defense counsel objected and, at sidebar, argued that the prosecutor had implied he was a “shyster lawyer,” which the pros- ecutor disputed. The district court instructed the jury to disregard “those last couple of statements about the South Park episode,” and defense counsel did not request further relief. The prosecutor then continued with his argument that defense counsel was trying to distract the jury with irrelevant matters. The court also reminded the jury three times throughout the proceedings that statements made by attorneys are not evidence. Ultimately, the jury reached a guilty verdict on seventeen counts, but was unable to reach a ver- dict on the remaining six. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 4 of 8
4 Opinion of the Court 21-13424
On appeal, Moise argues that the prosecutor’s “shyster at- torney” comment denied him a fair trial because it poisoned the jury’s mind against him and discredited his attorney. He does not otherwise challenge his convictions or sentence. II. We ordinarily review a claim of prosecutorial misconduct de novo because it presents a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). Here, though, while Moise objected to the challenged comment, he did not seek further relief, such as a mistrial, after the court sustained the objection and instructed the jury to disregard the comment. See United States v. Mosquera, 886 F.3d 1032, 1046 (11th Cir. 2018) (where defense counsel “did not seek any further relief” after the court sustained a defense objection, “any claimed failure by the trial court is reviewable only for plain error”); see also United States v. Marquardt, 695 F.2d 1300, 1304–05 (11th Cir. 1983). Because Moise did not suggest that the curative instruction was insufficient to cure any prejudice stemming from the comment, his current de- mand for a new trial was not fairly presented to the district court, so plain-error review applies. 1
1 Moise seems to acknowledge as much in his reply brief. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 5 of 8
21-13424 Opinion of the Court 5
III. In any case, Moise is not entitled to relief under either stand- ard of review because the isolated comment did not prejudice his substantial rights. “Prosecutorial misconduct requires a new trial only if we find the remarks (1) were improper and (2) prejudiced the defend- ant[’s] substantive rights.” United States v. Frank, 599 F.3d 1221, 1237 (11th Cir. 2010) (quotation marks omitted). “A defendant’s substantial rights are prejudicially affected when a reasonable prob- ability arises that, but for the remarks, the outcome of the trial would have been different.” Eckhardt, 466 F.3d at 947. In evaluating whether a defendant’s substantial rights have been affected, we consider the misconduct “in the context of the entire trial, along with any curative instruction.” United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009); see United States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments stand- ing alone, for the statements or conduct must be viewed in con- text.”). “Reversal on the basis of prosecutorial misconduct requires that the misconduct be so pronounced and persistent that it perme- ates the entire atmosphere of the trial.” United States v. Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quotation marks omitted). Moreover, “[i]f the district court takes a curative measure, we will reverse only if the evidence is so prejudicial as to be incurable by that measure.” Lopez, 590 F.3d at 1256. That’s because “[w]e USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 6 of 8
6 Opinion of the Court 21-13424
presume that the jury followed the district court’s curative instruc- tions.” Id. The parties agree to that the prosecutor’s “shyster” remark could have been perceived as an attack on the credibility or integ- rity of Moise’s counsel. We also agree that the remark was im- proper on that basis. See Young, 570 U.S. at 9 (attorneys “must not be permitted to make unfounded and inflammatory attacks on the opposing advocate”); United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) (“[t]o discredit defense counsel in front of the jury is improper”), overruled on other grounds as stated in United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989). Nevertheless, we see nothing in the record to suggest that Moise was prejudiced by the “shyster” comment. It was a single, isolated remark in an eight-day trial, and we cannot say it perme- ated the entire trial. See Weinstein, 762 F.2d at 1542. It also came in rebuttal during otherwise proper argument that defense coun- sel’s contentions about the IRS’s initial calculations were not di- rectly relevant to Moise’s guilt or innocence. So despite the pejo- rative nature of the word “shyster,” the jury would have under- stood the prosecutor’s remark as a narrow response concerning the initial calculations, not as a general attack on defense counsel’s character. 2 Cf. United States v. Stefan, 784 F.2d 1093, 1100 (11th
2 The jury also heard testimony directly from Moise, which minimizes the possibility it would use defense counsel as a proxy for Moise when assessing the evidence. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 7 of 8
21-13424 Opinion of the Court 7
Cir. 1986) (“[T]he harm inflicted by the prosecutor’s improper re- marks [in rebuttal] was lessened by the jury’s understanding that the prosecutor’s remarks were an invited response.”). Moreover, the district court promptly gave a curative in- struction for the jury to disregard the “statements about the South Park episode,” including the “shyster” remark, and it gave several instructions that the jury must decide the case based on the evi- dence, not statements from the attorneys. We presume that the jury followed these instructions. See Lopez, 590 F.3d at 1256. And there is nothing in the record here to overcome that “rock solid” presumption. See In re Price, 964 F.3d 1045, 1049 (11th Cir. 2020) (“The presumption that [juries follow their instructions] is rock solid law enshrined in a host of decisions of the Supreme Court and this Court.”). Indeed, that the jury did not convict on multiple counts indicates that it was able to follow the court’s instructions and make judgments based solely on the evidence. See United States v. Drum, 733 F.2d 1503, 1509 (11th Cir. 1984) (stating that a defendant’s conviction on one of two counts charged was “telling proof that he was not prejudiced by the prosecutor’s remark”), ab- rogated on other grounds by Dowling v. United States, 473 U.S. 207 (1985). IV. For these reasons, we cannot say that the prosecutor’s single improper remark, in the context of the entire trial, had a prejudicial effect on Moise’s substantial rights. We affirm Moise’s convictions. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 8 of 8
8 Opinion of the Court 21-13424
AFFIRMED.